2002 PLP 246 (YLR)

(1) Fire-arm punctured wound 1 c.m in diameter going deep outer anal middle of right leg right tibia was found fractured. (2) Fire-arm punctured wound 1 c.m. in diameter going deep outer and lower of right leg. (3) Fire-arm punctured wound 1 c.m. in diameter going deep inner and lower of right leg. (4) Fire-arm punctured wound 1 c.m. in diameter x going deep on back and mid of right leg. On the same day he also examined Yousaf Masih and found two fire-arm injuries on his person. On 17-11-1993 Dr. Iftikhar Ahmad P. W.13 conducted post-mortem exami nation on the dead body of Shahid Iqbal and found the following injuries:- (1) Fire-arm punctured wound 5 x 4. 5 c.m. x going deep on front of left chest 4 c.m. below left nipple and 6 c.m outer to mid liac. Edges of the wound were inverted. (2) Fire-arm punctured wound 3 c.m, in dia. x going deep on front and lower left chest 7 c.m. below injury No.2 6 c.m. outer to mid line. Edges of the wound were inverted. Blackening of edges of injuries No. 1 & 2 were present (3) Seven fire-arm punctured wound in an area of 7 c.m. x 6 c.m. on back of left abdomen 6 c.m. outer to mid-line each, measuring 1 c.m. in dia x going deep. Edges were everted. (4) Three fire-arm punctured wounds on outer of right abdomen and, measuring 1 c.m. in dia x going deep in an area of 6 x 4 c.m. 1 4 c.m. outer to mid line. Edges o3 the wound were everted.

6. The ocular account was furnished by Mehdi Hassan P. W.5 who was father of the deceased Shahid Iqbal and was eye witness of the occurrence and he supported the version of F.I.R. and narrated the motive for the allege occurrence. Abrar Hussain P. W.6 was injured in the same occurrence. He supported the prosecution story as an eye-witness of the occurrence He implicated all the appellants in his statement anti identified the accused in the Court, Rana Liaquat Ali was examined as, P. W.8. He was also injured in the same occurrence and he stated that he was guess of Abrar Hussain P.W.6 and was present it the shop on the day of occurrence and supported the prosecution story. Iftikhar Hussain P.W.9 also supported the prosecution story as an eye-witness. Dildar Hussain P. W.7 was witness of conspiracy hatched between the accused. Muhammad Siddique A.S.I. P.W.10 had recorded the formal F.I.R. Muhammad Afzal P.W.11 attested the recovery memo. Exh.P.M whereby Pump Action was recovered from the possession of Salah Uddin appellant and also attested the recovery memos Exh.P.N and P.O from his co-accused. The remaining witnesses are of formal in nature and need not to be discussed.

7. The prpsecution evidence was closed after tendering in evidence the feport of Chemical Examiner Exh.P.W, report of Serologist Exh.P.X and that of Forensic Science Laboratory as Exh.P.Y.

8. Statement of the accused/appellants were recorded under section 342, Cr.P.C. towards the end of the trial by putting them the prosecution evidence brought on record. They denied the allegation and claimed their innocence and false involvement due to enmity. They also denied the recovery of weapons of offence from their possession and Salah Uddin appellant in reply to question No.7, as to why this case against him and the P. Ws. deposed against him, he stated as under:- He was not present at the time of occurrence. In fact the office of Passban (Jamaat-i-Islami) is situated at the upper storey of United Bank Limited owned by his father and Pepsi Cola shop is in front of the said Bank across the road. The office of Passban was being maintained by his brother Saeed Ahmad deceased. The Afghan Mujahiddin also used to stay there and had cordial relations with his brother Saeed Ahmad deceased. Although they had compromised with the complainant party of that case in the murder of Saeed Ahmad yet the Afghan Mujahiddin had got a grudge against the complainant part especially Shahid Iqbal deceased it their mind. The said persons whc: are not known to him hac committed murder of Shahid Iqba: deceased and also inflicted injuriea on the person of remaining P.Ws The complainant was not present a9 the spot and the police after duc deliberations involved them in the instant case. He was arrested b` the police due to the reasons that he could not specify the name of those Afghan Mujahiddin whc committed the murder of Shahici Iqbal deceased.

9. The trial culminated into conviction of the appellant as mentioned above. They have challenged their conviction and sentence through the instant Criminal Appeal No.1001 of 1996 while the trial Court has sent up Murder Reference No.53 of 1997 for confirmation of death of Salah Uddin under section 374 Cr.P.C. Both tht matters are being decided by this single judgment.

10. Learned counsel for the appeiiaiiL at the very outset has stated that Waheeci Hussain Shah and Shahbaz Yousa: appellants have been released from jail after serving out their entire sentence. Therefore, he does not press this appeal to their extent as it has become infructuous

11. As far as appeal of Salah Uddin is concerned, it has been argued than complainant Mehdi Hassan was not present at the spot. The F. I. R. was recorded at the spot and presumption is that the case wa: registered after preliminary investigation: that the motive alleged by the prosecution is false as the murder of Saeed Ahmad, brother of Salah Uddin was patched up and the accused were acquitted. The prosecution witnesses are related inter se and their statements have not been corroborated from any other independent source. Report of Forensic Science Laboratory is in negative and sentence of death is not warranted under the law; that the statements of Abrar Hussain P.W.6 and Rana Liaquat Ali P. W.8 were recorded on 23-11-1995 with inordinate delay and they admitted the fact that during this period their relatives have been meeting them and it has also been admitted by both the witnesses in their cross-examinations that they were not sure that whose fire hit whom therefore, the prosecution case is doubtful and benefit of doubt be extended in favour of the present appellant and he be acquitted from the charge, or at least major penalty of death is not warranted in these circumstances.

12. Conversely the appeal has been opposed by the learned State Counsel who has supported the impugned judgment.

13. Heard. Record perused.

14. It was a day light occurrence. Police Station was only at a distance of 1 k.m. The previous enmity and involvement of the deceased in the murder of Saeed brother of Salah Uddin appellant has been admitted. The appellant was nominated accused in promptly recorded F.I.R. The appellants were known to the prosecution witnesses and there is no reason for their false implication or substitution by letting off the real culprits. Abrar Hussain P. W.6 and Rana Liaquat Ali P. W.8 were injured in the same occurrence. Their presence at the spot cannot be doubted rather it has been admitted. They implicated the appellant in their examination-in-chief anu he was also identified by them in the Court. Any concession made by them in the cross examination in favour of the accused/ appellant is of no use to the defence. Previous enmity between the complainant party and the appellant has not been denied and on the statement of the injured witnesses, false implication or substitution is not possible. The ocular account has been corroborated by the medical evidence as well as by motive and recovery of weapons of offence. The defence plea that Afghan Mujahiddin had relations with Saeed deceased who had grudge against Shahid Iqbal is afterthought and unbelievable.

15. After deep re-appraisal evidence, we are convinced that the prosecution has proved its case against the appellants beyond any shadow of doubt and we do not find any illegality or infirmity of reasons given in the impugned judgment to I be interfered with. We also do not find any mitigating circumstance for not awarding the major penalty of death.

16. Resultantly the appeal is dismisseu to the extent of Salah Uddin appellant as having no force, while the appeal of Waheed Hussain Shah and fihahbaz Yousaf is dismissed as having become infructuous and not pressed by the learned counsel for the appellants. The death sentence of Salah Uddin appellant is confirmed. Murder Reference is answered affirmative. N.H.Q./S-351/L Appeal dismissed: